Defending the constitution - Raana Shah - Tuesday, March 20, 2012

The black days of Pakistan’s short history range from the hanging of a prime minister to the sacking of the Supreme Court, repeated takeovers by the military, the mutilation of our Constitution and the promulgation of the National Reconciliation Ordinance (NRO). These dark events changed the course of Pakistan’s history and gave the country a gloomy future. At the heart of these misfortunes was nothing more than efforts by individuals to grab power by any means whatever. The almost irreversible damage to the country and its entire system is only a by-product of their greed for power and money.

We have repeatedly elected leaders who, far from making efforts to create and then maintain a balance between state institutions, have brought the country to a point where it could become no more than a footnote in the history of nations if things do not change radically, and immediately. The nature of many of those in power, and even those who aspire to positions of leadership in Islamabad, is authoritarian. Even civilian leaders are bent upon being autocrats.

In truly democratic countries, the law and the constitution, apart from ensuring fundamental human rights, make sure that tyrannical tendencies of individuals in power are effectively discouraged. This is made possible by a smoothly running system of checks and balances and harmony between state institutions. Distribution of power is done in a way that prevents its concentration in the hands of an individual or a coterie.

Our parliament has failed in its duty to protect the rights of the people its members represent. Instead they actively collude in supporting overambitious individuals. The controls that should be imposed on the executive by parliament are in reality nothing more than theory. Pakistan’s legislatures look after the interests of those in power, as well as their own. They do not care for the interests of those who are governed, even though legislators are supposed to represent the governed, those who elected them.

Unfortunately, there is little difference between Pakistani legislators belonging to ruling parties and coalitions and those belonging to the opposition. The latter mostly make clandestine backdoor deals with the government for mutual benefits. Therefore, it is futile to expect parliament and the provincial assemblies to keep the executive from abuse of power. Any person or institution challenging this trend has to face a strong challenge.

Constitutionally the judiciary has the greatest power to keep the executive in check by safeguarding the Constitution of the country. But we have seen in the past how our courts have invoked the doctrine of necessity when generals like Zia and Musharraf usurped power. It is the country’s good fortune that it now has a judiciary which is clean and honourable. At least one pillar of the state is willing to do its duty. But the judiciary is faced by a backlog of cases and delayed decisions stretching back decades. In addition, it is confronted by an executive that is determined not to implement the Supreme Court’s decisions, come what may. Therefore, it remains difficult for the Supreme Court to move forward to ensure that in the future justice is swift and transparent and that the court’s decisions are always enforced.

In South Africa in 1995 President Nelson Mandela presided over the inauguration of 11 judges of the Constitutional Court for a country just recently liberated from Apartheid. This was a triumph for the new South Africa, and for democracy. Just a few months after its inauguration, this same court ruled that an important decree of President Mandela was unconstitutional and invalid. His response to this ruling was for him to go on television to tell the South African nation that he fully accepted this ruling because the court was the final arbiter of the constitutionality of his decisions and no one was above the law. Nelson Mandela’s grace in the face of this arguable political defeat once again proved the greatness of a man who was already a hero for his nation and for the world. His bowing to the court’s decision ensured the entrenchment of democracy in his country. That is why South Africa is a beacon of democracy for Africa and the world. But leaders such as Mandela are born only once in a generation and we have no potential leader approaching the great man’s stature even remotely.

Our own leaders, on the other hand, are famous not for honesty and integrity but for their hubris, their pursuit of self-interest and their mutual insecurities. The mechanism envisioned by the Constitution is frozen in place to the further detriment of a country which has a progressively failing economy, serious internal and external security crises, rampant poverty and illiteracy, and which suffers from the hopelessness that these were bound to create.

Is it the Constitution that is at fault? It is not. It was passed almost unanimously by Pakistan’s first elected parliament. The constitution of any country can work only if it is implemented in letter and spirit, and our leaders take turns to do everything to make this basic document unworkable. So we can say that at fault are the optimism and “over-expectations” contained in the text of the Constitution.

Pakistani society itself will have to make efforts to make the Constitution workable. There should be stronger and clearer controls, delineations and parameters for arbitration of disputes between our various institutions. We have to break the cycle of recurring clashes between state institutions and to make certain that behind-the-scenes compromises no longer succeed. We have to end the poisonous status quo. We cannot leave that job to the “leaders” and the generals.

The court has to be vigorous and effective. A quiescent court is not a viable option for this country, as the past has proved. A proactive and watchful court is democracy’s strongest line of defence. And more so in the case of Pakistan, because in this country even civilian democracies have been democracies only in name, and even elected leaders have tended to be authoritarian. The rule of law is one of the fundamental building blocks of democracy and the judiciary is the only institution that can prevent the rule of the majority degenerating into a tyranny of the majority. The executive can no longer be allowed to try to exempt itself from submission to the rule of law. The constitutionally-mandated doctrine of separation of powers has to be protected and strengthened, and that can only be done by putting that doctrine in practice, not just by talking about it. Pakistan can no longer allow erosion of public trust in the working of the judicial system and in the Constitution.